Constitutional Law II Spring 2005Con Law II1 Unprotected Speech April 12, 2005

Spring 2005Con Law II2 speech How can speech be unprotected? Interpretive theory Strict textualism: no distinction among subjects of speech, even if some modes not protected Original intent: framers probably did not intend to protect libel, indecency, threats, etc. (perhaps only “prior restraints”) Broad textualism/dynamic, evolving const: core values underlying the 1 st Amendment:  Self-fullfilment / personhood  Search for truth / marketplace of ideas  Self-governance / political marketplace speech that doesn’t serve any underlying purpose of the 1 st Am. may be unprotected

Spring 2005Con Law II3 speech How can speech be unprotected? Functions of speech (speech act theory) Expressive (illocutionary, informational) Instrumental (perlocutionary)  Speech is the “trigger of action” (so closely associated with action) as to disallow any intermediation (free will) shouting “fire” in a crowded theater treated functionally as part of the action  Instrumental speech is not speech; it is conduct Performative speech  Saying  Saying “this is a holdup” means (literally) this is a holdup The words and the act are unitary

Spring 2005Con Law II4 speech How can speech be unprotected? Interpellative effect of speech on listener Speech Impact (emotional effect)  “I am going to kill you” is not merely expressive;  it creates an emotional response  “Sticks and stones” theory notwithstanding Not to be confused with “2 dary effects doctrine” Summary: Speech that doesn’t serve 1 st am purposes Instrumental speech Injurious speech if one or more of these apply, you may have unprotected speech

Spring 2005Con Law II5 Categories of unprotected speech Subversion Incitement of imminent lawlessness Threat/Solicitation of crime Fighting Words Defamation Hate Speech (“group libel”) Obscenity Functional (Performative) Speech

Spring 2005Con Law II6 Chaplinsky v. NH (1942) “You are a God damned racketeer and a damned Fascist” “No person shall address any offensive, deri- sive or annoying word to any other person …” Are “fighting words” speech? Injurious utterance  True of any epithet? Instrumental (trigger of action)  Likely to provoke the average person to retaliation  The words are integrated with the violent response

Spring 2005Con Law II7 Fighting Words Doctrine Limited by Chaplinsky test objectively likely to incite a breach of the peace  reasonable listener standard Injurious utterance theory narrowed  There may be expressive value to epithets

Spring 2005Con Law II8 R.A.V. v. St. Paul (1992) Is cross-burning speech? Symbolic speech What message is being communicated? ideological (protected political speech)

Spring 2005Con Law II9 R.A.V. v. St. Paul (1992) Is cross-burning speech? Symbolic speech What message is being communicated? threats of violence (not protected)

Spring 2005Con Law II10 R.A.V. v. St. Paul (1992) Is cross-burning speech? Symbolic speech What message is being communicated? ideological (protected political speech) AND “True Threats” (unprotected)

Spring 2005Con Law II11 R.A.V. v. St. Paul (1992) As speech, cross-burning can be both protected and unprotected St. Paul prohibits cross-burning that “arouses anger, alarm or resentment in others on the basis of race, color, creed, religion, sex”  As construed by state supreme court, this term is equivalent to “fighting words” [intimation similar] But: not all fighting words prohibited; only those based on race, etc.  Viewpoint-based distinction within a category of unprotected speech

Spring 2005Con Law II12 R.A.V. v. St. Paul (1992) Discrimination within unprotected speech E.g., some obscenity, libel, fighting words, etc. permitted depending upon viewpoint expressed Government-imposed orthodoxy violates 1 st, whether speech allowed is protected or not. This doesn’t mean gov’t must proscribe all of a category of unprotected speech; it may select  So long as the basis for distinguishing tracks the reason that category is unprotected in the first place  E.g., especially provocative “fighting words” Or because of “2 dary effects” (adult speech only) Or reasons unrelated to gov’t approval of views doesn’t this describe the St. Paul law?

Spring 2005Con Law II13 Virginia v. Black (2003) VA Statute: “unlawful for any person … with the intent of intimidating any person … to burn … a cross on the property of another [or a] public place” Conduct or Speech? Which is the VA law prohibiting?  I.e., is this an anti-speech or non-speech regulation?  proscribes only intimidation (“true threats”) Does it survive R.A.V.?  Yes, to extent it prohibits all intimidation (unprotected speech)

Spring 2005Con Law II14 Virginia v. Black (2003) Wisconsin v. Mitchell (1993) Enhanced punishment for hate motivated crimes  Punishment for conduct, not speech hate crimes inflict greater individual & societal harms  emotional harm beyond basic injury  more likely to incite retaliatory crimes

Spring 2005Con Law II15 Virginia v. Black (2003) VA Statute: “any such burning of a cross shall be prima facie evidence of an intent to intimidate a person or group of persons”  ignores all of the contextual factors necessary to decide whether a particular X-burning intimidates  because it captures both protected symbolic speech and unprotected intimidating speech, it is Overbroad (standing) [perhaps means too]  Black (protected speech)  Elliot/O’Mara (unprotected) (jus tertii standing) the provision is facially unconstitutional

Spring 2005Con Law II16 Defamation Libel & Slander publication of a false & injurious statement of fact “of and concerning” plaintiff Damages Special General Punitive

Spring 2005Con Law II17 NY Times v. Sullivan (1964) Where’s the state action? State libel law (positive or common law) 1 st amd used as defense to the cause of actioin Principles Robust debate on issues of public concern  Any liability tends to chill speech  strategic protection for speech means even some falsity must be tolerated Public officials Public figures Private persons

Spring 2005Con Law II18 NY Times v. Sullivan (1964) Truth & Falsity Truth must be a defense Only provably false statements are actionable  Only statements of fact fit this requirement  Not opinions, parodies (not reasonably taken as fact) Falsifiable statements actionable only if  Private figure  Public official/figure – actual malice standard knowledge that the statement is false reckless disregard for whether it is false or not negligence (e.g., failure to check facts) not sufficient  Is there any value in false speech?

Spring 2005Con Law II19 NY Times v. Sullivan (1964) Burden of proof On plaintiff at all times By clear and convincing standard Damages Actual malice – full range Private figure(no malice) – actual damages only Public Persons Public officials Public figures  “those by reason of the notoriety of their achieve- ments, or by the holding of the public’s attention”

Spring 2005Con Law II20 Gertz v. Welch (1974) Provable case of libel (per se) Unless “actual malice” required Public figures access to self-help (channels of communicat’n) voluntary assumption of close public scrutiny  Involuntary public figure? No, see Time v. Firestone General purpose public figure  general fame or notoriety; like high public official Limited purpose public figure  if thrust into limelight re subject matter of libel

Spring 2005Con Law II21 Dun & Bradstreet v Greenmoss (1985) Matters of public vs private concern Greater 1 st amd interest in promoting robust debate on public issues Greater private interests otherwise Negligent defamation on private matter Actual (compensatory) damages Presumed (general) damages Punitive damages Is the credit report a public or private matter?

Spring 2005Con Law II22 Cohen v. California (1971) What theory to claim profanity (“Fuck the Draft”) is unprotected Obscenity Fighting words (gross insults, epithets)  not used (or claimed) in this way here Incitement to violence (imminent lawlessness) Injurious utterance Non-expressive component of speech  Is profanity an expression of ideas or an instrument of assault? Secondary effects?

Spring 2005Con Law II23 What theory to claim profanity (“Fuck the Draft”) is unprotected Obscenity Fighting words (gross insults, epithets)  not used (or claimed) in this way here Incitement to violence (imminent lawlessness) Injurious utterance Non-expressive component of speech  Is profanity an expression of ideas or an instrument of assault? Secondary effects? Cohen v. California (1971) No appeal to prurient interest Not likely to provoke violent reaction Doesn’t advocate lawlessness Shocking but not harmful Highly expressive (& political) Only impact is on viewer

Spring 2005Con Law II24 Cohen v. California (1971) Could state have regulated Cohen’s speech even though it was protected? via Subject-Matter restrictions in a non-public forum courthouses are not a traditional venue for free speech Why didn’t it?

Spring 2005Con Law II25 FCC v. Pacifica (1978) 18 USC § 1464 “Whoever utters any obscene, indecent, or profane language by means of radio communication shall be fined under this title or imprisoned not more than two years, or both.” Wikipedia Claims Overbreadth  Doesn’t apply Carlin not prosecuted under criminal statute FCC order based on gen’l regulatory power H. R. 3687

Spring 2005Con Law II26 FCC v. Pacifica (1978) Claims Protected non-obscene speech (indecent/profane) Protection for profane speech “slight social value” Value varies with context Special rules for broadcast Uniquely pervasive presence (uninvited guest) Uniquely accessible to children (daytime hours) Licensing to promote public interest Doesn’t apply to other telecom (Sable v. FCC)

Spring 2005Con Law II27 Obscenity Categorical Balancing for Obscene Speech Textualism – protected Originalism – not protected by states in 1792 Dynamic – lacks any social value Non-interpretivism – universal judgment  federal legislation  state  international

Spring 2005Con Law II28 Roth v. US (1957) Roth standard: material that deals with sex in a manner appealing to prurient interest  material tending to excite lustful thoughts  lascivious desire or thought utterly without redeeming social importance The intractable obscenity problem Objective vs. subjective standards Stewart in Jacobellis v. Ohio (1964): “I know it when I see it”

Spring 2005Con Law II29 Paris Adult Theatre v. Slaton (1973) Beyond unprotected speech Obscenity is action not speech  arouses physical emotion  cognitive, emotional, reflexive? Correlation betw. obscenity & crime  secondary effects - violence ag. women Leads to antisocial behavior  corrupts morals  offends sensibilities of unwilling viewers/listeners  desensitizes people to rational thought Fails to serve any underlying 1 st am purpose ok for state to act on unproven assump- tions

Spring 2005Con Law II30 Miller v. California (1973) Standards for unprotected obscenity Works that depict or describe sexual conduct Taken as a whole, appeals to the prurient interest in sex  using contemporary community standards Portray sex in patently offensive way (hard core)  intercourse (normal or perverted)  masturbation, excretion, lewd exhibition of genitals Taken as a whole, do not have serious literary, political, or scientific value  objective national standards

Spring 2005Con Law II31 Miller v. California (1973) Standards for unprotected obscenity Works that depict or describe sexual conduct Taken as a whole, appeals to the prurient interest in sex  speech as conduct Portray sex in patently offensive way (hard core)  injurious speech Taken as a whole, do not have serious literary, political, or scientific value  no first amendment values

Spring 2005Con Law II32 Am. Book v. Hudnut (7 th Cir. 1985) Indianopolis law barring non-obscene porn Pornography depicting women in demeaning way, as sexual objects, or pleasure in pain Theories for expanding category of unprotected speech  Promotes violence against women  Promotes social bias against women  Making of porn exploits women Holding: Viewpoint-based discrimination Whether material is banned depends upon the message, not the pornographic content

Spring 2005Con Law II33 Ashcroft v. Free Speech (2002) New York v. Ferber (1982) Non-obscene child pornography can be banned because of the state’s important interest in protecting children from sexual abuse  children involved in film production Child Pornography Prevention Act (CPPA) Includes images (real or virtual) that appear to, but don’t actually, include children  can’t be justified on basis of protecting child actors  encourages pedophilia?  assists in prosecution of real child pornography